Calcutta High Court (Appellete Side)
Ors vs Sri Chandra Sekhar on 16 March, 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Arindam Sinha
And
The Hon'ble Justice Suvra Ghosh
M.A.T. 1016 of 2017
The Executive Director & Appellate Authority, Bank of Baroda &
Ors.
Vs.
Sri Chandra Sekhar
For appellants : Mr. Imtiaz Ahmed, adv.
Mr. Apurba Kumar Bandhopadhyay, adv.
Mrs. Ghazala Firdous, adv.
For respondent : Mr. Soumya Majumder, adv.
Mr. Victor Chatterjee, adv.
Heard on : 11.01.2021, 20.01.2021, 05.02.2021, 08.03.2021 and
16.03.2021.
Judgment on : 16.03.2021.
Arindam Sinha J.: We had recorded dispensation of all formalities
with consent of parties, for hearing of this appeal on papers disclosed in
the stay application. Mr. Majumder, learned advocate appearing on behalf
of respondent/writ petitioner, had waived service of notice of appeal.
Mr. Ahmed, learned advocate appears on behalf of appellants and
relies on clause (b) in sub-section (1) of section 10 in Banking Regulation Act,
1949. He submits, the provision, as applicable, is, no banking company
shall employ any person who has been convicted by the criminal Court of an
offence involving moral turpitude. He draws attention to show cause notice
dated 6th December, 2012. It recites that vide orders dated 26 th April, 2012
and 1st May, 2012 the criminal Court had convicted respondent under
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section 302 of Indian Penal Code, for causing death of his wife. He was told
that as he had been convicted by competent Court for an offence amounting
to moral turpitude, under said provision of the Act of 1949, he cannot be
continued in employment of the Bank. Respondent replied to the show cause
by letter dated 24th December, 2012 informing he had appealed against the
conviction. That he was under suspension with effect from date of conviction
and, inter alia, as follows :-
"It would amount to gross miscarriage of justice if any
further action is contemplated against me, prior to
hon'ble court's verdict in the matter. I shall be highly
obliged if you will take a compassionate view in the
matter."
He submits, on long pendency of the appeal, there was delay and finally
order dated 30th January, 2016 was passed imposing punishment of
compulsory retirement and that the period of suspension will be treated as
'time not spent on duty'.
He relies on regulation 11 in Bank of Baroda Officer Employees'
(Discipline and Appeal) Regulations, 1976. Regulation 11 is reproduced
below:-
"11. SPECIAL PROCEDURE IN CERTAIN CASES
"Notwithstanding anything contained in regulation 6 or
in regulation 7 or in regulation 8 the Disciplinary
Authority may impose any of the penalties specified in
regulation 4 if the officer employee has been convicted
on a criminal charge, or on the strength of facts or
conclusions arrived at by a judicial trial.
Provided that the Officer Employee may be given an
opportunity of making representation on the penalty
proposed to be imposed before any order is made."
He cites judgment of Supreme Court in Sushil Kumar Singhal vs.
Punjab National Bank reported in (2010) 8 SCC 573, paragraphs 18 and 23
to 26, on moral turpitude.
Mr. Mazumdar draws attention to section 19 in Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970, to submit, thereby
was given power to Board of Directors of a corresponding new bank, as is
appellant, to make regulations after consultation with Reserve Bank and
with previous sanction of the Central Government. The Regulations are
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Bank of Baroda Officer Employees' (Discipline & Appeal) Regulations, 1976.
He submits, this subordinate legislation gives discretion to the disciplinary
authority, regarding imposition of any of the penalties, if the officer
employee has been convicted on a criminal charge, or on the strength of
facts or conclusions arrived at by a judicial trial. There is a proviso. The
consequence under section 10(1)(b) in Banking Regulation Act, 1949, by
the Regulations, has been transformed to discretion on imposition of
penalty. Procedure in regulations 6, 7 or 8 must be followed as applicable
to imposition of penalties.
He submits further, his client has not committed any act in relation to
his service, for which there can be initiation of disciplinary proceeding
against him. On query Mr. Majumder submits, no cross-objection was filed.
An alleged crime, where he is the accused, has rendered him exposed to a
situation suffered, regarding his service. By April, 2016 his client would
have achieved pensionable service, but the penalty order says that period
under suspension will be treated as 'not spent on duty'.
On Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970 he submits, it is an Act providing for acquisition and transfer of
undertakings of certain banking companies to, inter alia, serve better the
needs and development of the economy. In that context he relies on section
19, for power to make regulations. The power is to make regulations for all
matters expedient for the purpose of giving effect to the provisions of the Act.
The Regulations were duly made and they are to be enforced. He reiterates,
for imposition of penalty referred to in regulation 11, disciplinary proceeding
to determine the case for imposition is necessary.
On Sushil Kumar Singhal vs. Punjab National Bank (supra) he
submits, case of appellant before Supreme Court was for reinstatement, on
having obtained probation under Probation of Offenders Act, 1958. Said
Court formulated the sole question involved to be whether the benefit granted
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to appellant under provisions of the 1958 Act makes him entitled to
reinstatement in service. Said Court answered the question with regard to
the word 'disqualification', contained in section 12 of the Act. He, however,
does not dispute that conviction suffered by his client is for an offence
involving moral turpitude.
Mr. Ahmed relies on firstly, judgment of Supreme Court in The Deputy
Director of Collegiate Education vs. S. Nagoor Meera reported in (1995) 3
SCC 377, paragraph 8. Following passage in the paragraph is extracted
below.
"We need not, concern ourselves any more with the power
of the appellate court under the Code of Criminal
Procedure for the reason that what is relevant for clause
(a) of the second proviso to Article 311(2) is the "conduct
which has led to his conviction on a criminal charge" and
there can be no question of suspending the conduct. We
are, therefore, of the opinion that taking proceedings for
and passing orders of dismissal, removal or reduction in
rank of a government servant who has been convicted by
a criminal court is not barred merely because the sentence
or order is suspended by the appellate court or on the
ground that the said government servant-accused has
been released on bail pending appeal."
He also relies on view taken by a learned single Judge of Delhi High Court in
Bank of Maharashtra vs. Om Prakash Malvaliya reported in (1997) LAB.
I.C. 1932. Paragraph 15 is reproduced below.
"Taking all these factors into consideration it can be said
that since the respondent was involved in "moral
turpitude", hence the disciplinary authority of the Bank
was justified in dismissing him from service by invoking
the provisions of S. 10(1)(b) of the Banking Regulation Act
read with clause 19.3(b) of the Bipartite Settlement."
Mr. Majumder replies with reference to, inter alia, paragraph 7 in S.
Nagoor Meera (supra) that the respondent had status of being in government
service. There is distinction between said respondent and his client, who is
in bank's service. Article 311(2) and second proviso, in the Constitution of
India, were being considered by Supreme Court, where contention was that
respondent had been released on bail without suspension of sentence of
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conviction. In that context said Court said, inter alia, as in paragraph 7
reproduced below.
"This clause, it is relevant to notice, speaks of "conduct
which has led his conviction on a criminal charge". It does
not speak of sentence or punishment awarded. Merely
because the sentence is suspended and / or the accused
is released on bail, the conviction does not cease to be
operative.
.................................................................................
.................................................................................
....."
We find from the writ petition, prayer was to set aside order of
compulsory retirement and continue the position of status quo as maintained
since December, 2012, till appeal before the High Court is finally decided.
We also made query and got submission from Mr. Majumder that the Act of
1970 is not in derogation of the Act of 1949. We notice, by section 20 in the
Act of 1970, certain amendments were made to the provisions in the Act of
1949 but section 10 was not touched.
On facts, order of deemed suspension dated 31 st May, 2012 says it took
effect from date of detention being 26 th April, 2012. The order was issued in
terms of regulation 12(a). Then came show cause notice dated 6 th December,
2012, reciting the conviction vide order passed by Additional Sessions Judge
of Purnea, invoking section 10(1)(b) of the Act of 1949 and calling for
respondent's reply. Respondent's response was by letter dated 24 th
December, 2012. It was followed by order dated 30 th January, 2016, of
disciplinary authority, imposing penalty of compulsory retirement of
respondent and saying that the period of suspension will be treated as 'not
spent on duty'. This order says it was issued as per statutory provision in
section 10(1)(b). Respondent preferred appeal. Appellate authority by order
dated 6th August, 2016 said, inter alia, as follows.
"The contention of Mr. Chandra Shekhar in any way does
not affect the Judgment passed by the Hon'ble Court of
Additional Sessions Judge, Purnea convicting Mr. Chandra
Shekhar of offence under Section 302 of IPC by the Hon'ble
Court of Additional Sessions Judge, Purnea vide order
dated 26.04.2012 and 01.05.2012 in Case No.532/2006."
We do not find any procedural irregularity, on the manner in which the
bank proceeded pursuant to respondent being convicted. Respondent had
preferred criminal appeal and the appeal is still pending. It has also been
submitted on behalf of respondent that he did not commit any act in the line
of service, for which there can be initiated disciplinary proceeding. It is our
interpretation of regulation 11 that in spite of it providing for imposition of
penalty, a special procedure, on exercise of discretion to impose such a
penalty, has also been provided. We are unable to accept the contention of
respondent that regular procedure of disciplinary proceeding must be
followed in event a penalty is imposed under the regulation. Keeping in mind
that by the Act of 1970, Parliament caused amendments to certain
enactments in the Banking Regulation Act, 1949 but left section 10 therein
untouched and power to make regulation under section 19 is for purpose of
giving effect to the provisions of the Act, our above interpretation. There does
not appear to be a dispute raised or any controversy regarding operation and
applicability of section 10(1)(b) of the Act of 1949.
In S. Nagoor Meera (supra) Supreme Court considered clause (a) in
second proviso under article 311(2). Said Court interpreted the proviso as
relating to conviction simpliciter inasmuch as it does not speak of sentence
or punishment awarded. As such the Court said, merely because the
sentence is suspended and/or accused is released on bail, the conviction
does not cease to be operative. Suspension of sentence, by which the
accused is convicted or the accused is released on bail, can only happen as
on a direction in appeal from the order of conviction. Bail is granted by
appellate Court. In the circumstances, Supreme Court said, the conviction
does not cease to be operative. Going by that we do not find reason to
interfere with the procedure followed by the bank.
However, we cannot be unmindful of the conduct of the bank. On
receipt of information regarding detention, it promptly issued the order of
deemed suspension. Contents of the order of deemed suspension bears
reference to the conviction. It is true that regulation 12 provides for
suspension as in clause (b) under sub-regulation (2). The show cause notice
regarding respondent, as cannot continue to be in employment of the bank,
was issued on 6th December, 2012 and cause shown on 24 th December, 2012.
The disciplinary authority passed order of compulsory retirement on 30 th
January, 2016. Post 24 th December, 2012 and till before 30th January, 2016
respondent may have had reason to think that his reply stood accepted and
the bank had decided to wait for decision in appeal. The bank suddenly
turned around and issued order imposing penalty of compulsory retirement
coupled with denial of entitlement to pension. This appears to be added
punishment. In the facts and circumstances we are minded to exercise our
power in appeal, to make any order as the case may require although
respondent has not preferred a cross objection. We vary impugned order to
the extent that the order of disciplinary authority, as confirmed by the
appellate authority, shall remain stayed till decision in the criminal appeal.
It will become operative on the conviction being confirmed. It goes without
saying that acquittal by the appellate Court will make our order of stay,
permanent. Respondent will continue in the position of being under
suspension, till acquittal or confirmation of the penalty. He will be entitled to
arrears and current subsistence allowance, till decision in appeal or he
achieves age of superannuation, whichever is earlier. The latter contingency,
if fulfilled, respondent will be retired on giving him the notional benefit of
continuous service. The relief we are giving to respondent is on his prayer.
He will be estopped from claiming back wages on any eventuality.
The appeal is disposed of.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
